CITATION: Meherab v. Allstate, 2025 ONSC 668
DIVISIONAL COURT FILE NO. DC-24-00000090-0000
DATE: 20250128
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: Hasan Meherab, Moving Party/Appellant
AND:
Allstate Insurance Company, Responding Party/Respondent
BEFORE: Nakatsuru J.
COUNSEL: Self-represented Moving Party/Appellant (Zahangir Kabir permitted to assist)
Shelby Chung, for the Responding Party/Respondent
HEARD at: Toronto, January 28, 2025
ENDORSEMENT
[1] Mr. Meherab filed a notice of appeal of the decision of the Licence Appeal Tribunal (LAT), dated November 6, 2023, and the review decision, dated January 8, 2024. Mr. Meherab was involved in a motor vehicle accident. In July 2022, he entered into an agreement with his insurer, Allstate Insurance Company (the respondent to this appeal). The appeal relates to whether certain benefits were covered by the settlement reached between the parties, which settlement included a full and final release. The appeal has not yet been scheduled.
[2] Mr. Meherab is currently residing in Bangladesh.
[3] There has been a bit of a history to this case. Until Shore J.’s decision of July 26, 2024, Mr. Meherab was “represented” in the LAT proceedings and in this Court by a non-lawyer, his father, Zahangir Kabir. In Shore J.’s decision reported at 2024 ONSC 4234, Mr. Kabir’s motion to act as Mr. Meherab’s litigation guardian was denied.
[4] After that decision was made, Davies J. released an endorsement on October 29, 2024, advising him of the steps he needed to take in order obtain a court order to appoint the Public Guardian and Trustee (PGT) to act on his behalf: 2024 ONSC 6004.
[5] Mr. Meherab now seeks that order appointing the PGT to act as his litigation guardian. The respondent opposes on the grounds that the evidence produced by Mr. Meherab does not substantiate the appointment. Under rule 7.04(1) of the Civil Rules of Procedure a court must appoint the PGT to act as the litigation guardian for the person under a disability if no other proper person is willing and able to do so.
[4] For the following reasons, the motion is dismissed.
[5] To obtain the order, Mr. Meherab must meet the legal test of being under a disability. The onus of establishing a party’s disability rests with the person making the allegation: Sosnowski v. Johnson, 2006 32309 (ON CA), at para. 2.
[6] Under section 1.03(1) of the Rules of Civil Procedure, “disability” is defined and the relevant subsection refers to the provisions of the Substitute Decisions Act, 1992. Stinson J. in 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114 (S.C.J.), at paras. 20-21 held that in a civil proceeding not under the Substitute Decisions Act, someone will be considered a person under a disability if the person is not able to understand information that is relevant to making a decision in the management of his or her property in respect of an issue in the proceeding, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision in respect of an issue in the proceeding. Mr. Meherab must be unable to understand and appreciate relevant information about his appeal or the reasonably foreseeable consequences of a decision or lack of a decision about his appeal, not simply that he fails to do so. See Davies J.’s comments in Meherab at paras. 10-11.
[7] Mr. Meherab has submitted evidence of Dr. Md. Mohsin Ali Shah, Mr. MD. Azizul Islam, (a Social Service Officer), a translated disability certificate, and a dated note of Dr. Sandip Kumar Dash of December 29, 2022. I do not find this evidence, even viewed collectively, as very probative. Dr. Shah’s note is limited without any substantive detail and does not address the key issues of the test. Mr. Islam is not a medical doctor and it is unclear the standard he bases his view that Mr. Meherab is disabled. This frailty is even more pronounced when it comes to the translated disability certificate. Finally, Dr. Dash’s note is dated and outlines a panic attack and a normal EEG; neither which supports to any significant degree Mr. Meherab’s disability as defined in the test.
[8] The most significant evidence is the Psychological Evaluation Report of Ms. Samima Akter, Assistant Clinical Psychologist of the Psychological Assessment Clinic at the University of Dhaka. It must first be observed that Ms. Akter did not opine Mr. Meherab was incapable of being able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision. No diagnosis is offered by her. Nonetheless, the whole of the assessment must be evaluated including reasonable inferences from the findings and opinions that are made.
[9] Analyzed in that manner, I am satisfied that Mr. Meherab does suffer from some psychological issues that require intervention and therapy. Ms. Aktar states Mr. Meherab “may” have some deficits in decision-making and functional activities. However, this seems to spring from an assessment under the heading “Functionality/work” that during the objective assessment Mr. Meherab was “confused to answering the questions”. The other parts of the assessment are relatively normal and speak well about Mr. Meherab’s capacity to understand and appreciate relevant information or the reasonably foreseeable consequences of a decision. For example, under the heading of “Mental State Examination”, Ms. Akter noted Mr. Meherab’s social behaviour (social and non-verbal) was culturally appropriate. His speech and language were noted to be appropriate with coherence and relevance. Although he was in an anxious mood and eager to speak during the assessment, Ms. Akter noted thinking and perceptual problems were not found and there were no memory (both short term and long term) related problems. Ms. Akter opined Mr. Meherab’s insight and judgment were present and intact. His attention and concentration seemed normal. He had insight into his problems and had taken initiative in seeking treatment. There were no risky behavioural issues that caused concern for his own safety or the safety of others.
[10] Looking at the whole of the evidence, I agree with the respondent that whatever deficits there are, they fall significantly short of establishing that Mr. Meherab is not able to appreciate relevant information about his appeal or the reasonably foreseeable consequences of a decision or lack of a decision in respect of an issue in this proceeding.
[11] In conclusion, I do not make the order Mr. Meherab seeks.
[12] One last issue that needs to be dealt with. In the endorsement of July 26, 2024, Shore J. raised concerns that the notice of appeal which purportedly was filed by Mr. Kabir, was not filed in an authorized fashion. Thus, she stayed the appeal until evidence could be brought before a case management judge to satisfy the court that the appeal was commenced appropriately.
[13] Mr. Meherab attended this motion along with his father, Mr. Kabir. He clarified that he wanted to appeal this decision as the notice of appeal stated. Likely due his legal unsophistication, he instructed his father to file the notice of appeal. I find that this appeal was properly authorized. The respondent takes no issue with this. This is the first time that Mr. Meherab has attended a proceeding.
[14] The stay will be lifted. A virtual hearing will be scheduled. A Bengali interpreter will be required. Mr. Meherab will attend the appeal. It will be up to the panel hearing the appeal to determine what assistance he may have at that hearing.
[15] The matter of costs of this motion are reserved to the panel hearing the appeal.
Nakatsuru J.
Date: January 28, 2025.